‘I Am Not A Lawyer And [I] Do Not Give Legal Advice’ said the ad – OH YES YOU DO, said the Court

‘I Am Not A Lawyer And [I] Do Not Give Legal Advice’ said the ad – OH YES YOU DO, said the Court

The Supreme Court found that the advertisement constituted an offer to perform legal work.

The WA Courts have found that an ad on Gumtree offering “… some help to guide you through the Court System …”, was legal work.

… [if] the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitutes the practice of law …

Legal work can only be undertaken by a lawyer acting pursuant to the relevant Legal Profession Act in their state.

On 23 June 2017 the Court of Appeal in Western Australia upheld an earlier decision of the Supreme Court. VAN DER FELTZ -v- LEGAL PRACTICE BOARD [2017] WASC 2 summarises the law in relation to what is legal work. The legislation is very similar across Australia, so a West Australian Court of Appeal decision would be very persuasive in Queensland, and indeed, Australia wide.

Mr Ric van der Feltz’s advertisement said, in part:

“I can help you prepare to represent yourself in Court and with filling out Court applications and other Court documents and the drafting of affidavits.

I am not a Lawyer and do not give legal advice. I do have an overseas Law Degree and extensive experience representing myself in the Magistrate, District and Supreme Court and the State Administrative Tribunal (SAT) in commercial and administrative matters and helped others do the same.

You might just need some help to guide you through the Court system and that’s where I come in at a fraction of the cost of a Lawyer.

A first meeting is free and obligation free. If you decide to proceed I will charge a one off fee depending on the matter and the court.”

Mr van der Feltz denied the charge of “… representing and advertising that he was entitled to engage in legal practice when he was not an Australian legal practitioner …”. The court therefore had to decide what constituted “legal practice“.

The Supreme Court found, at par. 82, that the advertisement offered to perform legal work:

“The necessary implication of the words of the advertisement was that the appellant would use specialised knowledge and experience to assist litigants. He represented himself as having skills in how a person should represent him or her self and how to complete documents. The fee structure implied that this work would be of more than of a clerical nature but would utilise the appellant’s claimed expertise in legal matters.”

When considering what constituted legal work the Supreme Court quoted, with approval, several earlier decisions that said:

“…the practice of law also includes the giving of legal advice and counsel to others as to their rights and obligations under the law…”

“…[if] the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitutes the practice of law…”

“…where a person [creating]documents intended to affect legal rights …. exercises his mind as to what is the appropriate form of words to accommodate the particular case, then this can be regarded as drawing or preparing a legal document. A process of that kind goes beyond mechanical or clerical tasks …”

“…the situation where an instrument is shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing laws in order to ensure a specific result and to guard against others. In such a case more than the knowledge of the layman is required and a charge for such services brings it within the practice of the law…”

“…Where a person, in preparing documents, exercises his mind as to what is the appropriate form of words to accommodate the particular case, this can be regarded as drawing or preparing a legal [document]…”

The Court looked at the work being offered and found it was legal work, regardless of how the defendant tried to describe it.

In one week, the Notifiable Data Breaches (NDB) scheme comes into force. The scheme mandates that Australian Government agencies and businesses with obligations under the Privacy Act 1988 (Privacy Act) must notify you if you are likely to be at risk of serious harm because of a data breach.

From 22 February 2018, the Notifiable Data Breaches scheme (NDB scheme) will require a wide range of organisations to report data breaches that are ‘likely to result in serious harm’ to the individuals whose personal information is affected by the breach. They will also be required to notify the OAIC.

The Australian Information Commissioner has released a direction regarding certain procedures to be followed during an Information Commissioner review (IC review) which takes effect from 26 February 2018.

Individuals who were in immigration detention on 31 January 2014, and were affected by the Department of Immigration and Border Protection’s February 2014 data breach, now have an opportunity to provide information about any loss or damage suffered as a result of the breach.

Private sector health service providers will be required to notify affected individuals and the Australian Information Commissioner of data breaches that are likely to cause serious harm under the Notifiable Data Breaches (NDB) scheme.